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Statutory tort protection of sex discrimination and harassment in Hong Kong In respect of sex discrimination and harassment, the former is not protected by common law of tort but the latter is protected. The tort of harassment emerged in Burris v Azadani . Nevertheless, statutes protecting people from sex harassment are passed in different countries to further assure the importance of sex equality. In this essay, the statutory tort protection provided in Hong Kong in respect of sex discrimination and sexual harassment will be discussed. The Sex Discrimination Ordinance (SDO) will be analyzed and relevant cases will be used to show how the ordinance protects people. Sex Discrimination Ordinance The Sex Discrimination Ordinance (SDO) renders unlawful certain kinds of sex discrimination such as sexual harassment. Section 2(5) of the SDO provides that a person sexually harasses a woman if- (a) the person- (i) makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to her; or (ii) engages in other unwelcome conduct of a sexual nature in relation to her, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimidated; or (b) the person, alone or together with other persons, engages in conduct of a sexual nature which creates a sexually hostile or intimidating work environment for her. Unwelcome conduct Firstly, the conduct must be unwelcome. However, whether an act is unwelcome is subjective. Thus it is stated that a reasonable person standard is used. Nonetheless, controversy still occurs. Although using the objective standard has the advantage that the intention of the harasser is irrelevant, reasonable people may have different ideas as to what kind of behaviour is reasonable. In particular, the “reasonable man” and the “reasonable woman” may have different views as to what is acceptable behaviour. If a “reasonable man” standard is used, we may run the risk of further reinforcing the prevailing level of discrimination. If a “reasonable woman” standard is used, it may lack objectivity and lead the court to view sexual harassment solely from the victim’s perspective. It is suggested the standard should be that of the reasonable victim, which would permit arguments that an individual woman reacted in a way which was unforeseeable without being so subjective that all standards disappear. Another way of expressing this idea is that there should be liability if the harasser knew or should have known that the victim found the conduct to be objectionable. In addition, we should take the victim as we find him and it should be noted that the reasonable person should anticipate the victim’s reaction with regard to all the circumstances such as the age of the parties, their experience, the employment context, their relationship and so on.
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